The suit challenges a new directive from the state requiring a negative COVID-19 test within 48 hours of obtaining an abortion, despite rapid testing not being widely available. 

LITTLE ROCK, Ark. — The American Civil Liberties Union and the ACLU of Arkansas filed emergency legal action this morning on behalf of Little Rock Family Planning challenging a new requirement from the Arkansas Department of Health (ADH) that is preventing patients from getting abortion care. 

On April 27, ADH issued a new directive mandating patients obtain a negative COVID-19 test within 48 hours of their abortion. Little Rock Family Planning Services and its patients have been working diligently to secure such tests — but in many cases are unable to do so, as tests and testing resources are in short supply and results are generally not available within two days. One patient was recently tested twice, and both times did not receive test results within the 48-hour window necessary to secure abortion care. She is now within days of the legal limit for seeking abortion care in Arkansas.

"Once again, Arkansas is putting up medically unnecessary and insurmountable obstacles for patients seeking abortion care,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project. “The pandemic has put families that were already struggling under tremendous strain. They are losing their jobs and doing everything they can just to keep their families healthy and make ends meet. Now, in the middle of all this, Arkansas is forcing them to run around the state in search of tests that don’t exist and when they can’t get them, they are forced to continue pregnancies and have children they feel ill equipped to care for. It’s beyond cruel.”  

If immediate relief is not granted, Little Rock Family Planning Services will have to turn away three individuals who are scheduled to have abortions today and who are within days of losing their right to have an abortion in Arkansas. 

Patient Jane Doe 1 is the single mother of two small children who lost her job due to the ongoing pandemic. She is having a difficult pregnancy that sometimes makes it hard to care for her children. After her last pregnancy, she suffered from serious post-partum depression. She worries that if she were forced to carry another pregnancy to term, her physical and mental health would suffer, and she would not be able to take care of her children or find another job. Because she is struggling financially, she had to wait to seek an abortion until she got her tax refund. She is now days away from losing her right to get an abortion but cannot get the procedure because has been unable to get a COVID-19 test as required by the Arkansas directives.   

Jane Doe 3 is the mother of a toddler. Her mother died recently, so she is now also raising one of her young siblings. Like so many others, she lost her job because of the pandemic. She has experienced significant health problems during her pregnancy and is in such pain that it makes it hard to even walk some days. The health problems, coupled with the current crisis, has made it impossible for her to find a new job. She is already worried about supporting her family and doesn’t know how she will do it if she is forced to have another child. She first sought an abortion in Texas, but her appointment was cancelled because of the executive order barring abortions in that state. As she describes it, she has exhausted all of her options and is now within days of losing her right to an abortion even though she knows it the right decision for her and her family.

Jane Doe 4 has two children under six, one of whom has autism and is non-verbal. She has no family nearby and she and her husband are struggling both emotionally and financially to care for their family. Because of the pandemic, her hours at work have been cut back severely and she fears she will soon lose her job entirely. Knowing she could not handle another child, after the birth of her second child, she sought to have her tubes tied but her doctor refused to do it. She has been seeking an abortion since February, but because clinics in Texas and Arkansas were shut down due to the COVID-19 executive orders, she is now within a week of losing her right to obtain an abortion. She sought a test at the hospital but was told she was ineligible because she was asymptomatic and was not having a procedure done at that hospital. When she finally found a clinic that would test her, she was told results would likely take five to seven days — well outside the 48-hour requirement. She is distraught because she is running out of options and, as she says, if she can’t get an abortion her life and her family’s life will be irrevocably changed despite her doing everything in her power to get the care she needs.

“These patients’ lived experiences demonstrate the urgency of the situation in Arkansas,” said Holly Dickson, interim executive director and legal director at the ACLU of Arkansas. “People cannot pause their pregnancies, but this politically-motivated restriction is already pushing care out of reach. We’re asking the court to intervene so that not one more patient is cut off from care and forced to continue a pregnancy against their will.”

Last month, the Eighth Circuit Court of Appeals issued an opinion permitting the state of Arkansas to ban procedural abortions during the COVID-19 pandemic. It is the only court to have permitted a state to prevent a person from getting an abortion, even if doing so would entirely bar them from getting an abortion. The ruling reverses an earlier ruling by the District Court for the Eastern District of Arkansas blocking the state’s efforts to use the guise of the public health crisis to prevent abortion services. 

This lawsuit was brought by the American Civil Liberties Union (ACLU), the ACLU of Arkansas, the law firm of O’Melveny & Myers, and Little Rock lawyer Bettina Brownstein on behalf of Little Rock Family Planning Services.